Private Guardianship for Adults with Developmental Disability

P R E P A R E D B Y K I M A L L S H O U S E , M S W , M A

Who might need a guardian?

   A guardian can be appointed for a person 18 years or older with a diagnosed developmental disability Not every person with a developmental disability is in need of guardianship A guardian should be considered if:  The person is unable to make his or her own decisions  The person is able to make his or her own decisions, but consistently makes decisions that put himself/herself in situations that are dangerous or where there is substantial risk of exploitation

Guardianship

      Who needs a guardian?

Alternatives to guardianship Petition process Evaluation Process Duties of a guardian Rights of a person with a guardian

Probate and Family Court

 Probate court judges decide in cases where a family member, friend, or other private citizen has petitioned for guardianship (14 V.S.A. Section 3060)  Family court judges decide in cases where there is a petition for a public guardian assigned through the Office of Public Guardian

14 V.S.A. Section 3060

“Guardianship for mentally disabled persons shall be utilized only as necessary to promote the well being of the individual and to protect the individual from violations of his human and civil rights. It shall be designed to encourage the development and maintenance of maximum self reliance and independence in the individual and shall be ordered only to the extent required by the individual’s actual mental and adaptive limitations.”

14 V.S.A. Section 3061

 A person is in need of guardianship if:  The person is mentally disabled   The person is at least eighteen years of age The person is unable to meet his/her needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future  The person is unable to manage his or her financial affairs as evidenced by gross mismanagement of income and resources which is likely in the near future to lead to financial vulnerability

Alternatives to Guardianship

 Guardianship involves the removal of rights. Alternatives to guardianship should be considered if the individual is able to voice his/her own needs and dreams and has a person who is able to support him/her by:  Listening to the individual’s voice       Honestly assessing the individual’s ability Respecting the individual’s dream Being available in times of crisis Being willing to do needed paperwork Being a creative advocate Keeping the person informed about what he/she is doing

Other Alternatives to Guardianship

      Representative Payee Joint Checking Account Direct Deposit Power of Attorney Special Needs Trust Health Care Agent (Advance Directives)

Guardianship Process (Probate Court)

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Interested party files petition in county where person lives In many counties, the person for whom the petition is made (respondent) must be no less than three months from reaching the age of 18 Petition must be accompanied with the Statement of the Proposed Ward’s Assets and Income (Form 73) and by the List of Interested Persons for a Guardianship (Form 75) Petitioner is asked to supply the name of an independent evaluator to evaluate respondent’s need for guardianship supports A filing fee is charged The petitioner may be asked to pay legal fees for legal representation appointed to respondent

Guardianship Process (Probate Court)

After Petition is filed:        Court appoints attorney for respondent Evaluation is ordered Evaluation completed and returned to court Guardian ad litem may be appointed Hearing is held Judge makes decision (usually takes 45 – 60 days from time of filing to obtain court order) Guardian posts bond

Powers of Guardians – 14 V.S.A. Section 3069

      General Supervision  Power to choose or change residence, care, education, employment, supportive services Contracts  Power to approve or withhold approval of any contract Property  Power to approve or withhold approval of the individual’s request to sell or encumber property Financial  Power to exercise supervision over the individual’s income and resources Medical  Power to consent to surgery or other medical procedures Judicial  Power to receive, sue for, and recover debts and demands due to the individual, to maintain and defend actions or suits, settle accounts….

The Evaluation Process - Interviews

   Interview petitioner either by phone or in person  Ask for information regarding respondent’s abilities in each of the powers of guardianship Arrange appointment to interview individual for whom petition has been filed  Based on the abilities of the respondent, interview him/her in a semi-structured format which queries his/her skills and knowledge in six areas of guardianship.

Interview other interested parties (case manager, school services, etc.)

The Good Guardian

A good guardian helps ensure that the person is: Safe  Lives in a safe home    Lives with people who treat him/her right Has appropriate clothing Has a good support system, if needed Source: DDMHS/DS, How to be a good guardian

The Good Guardian

A good guardian helps ensure that the person is: Healthy  Make good food choices       Provide equipments, glasses, adaptive technology, etc.

Choose good doctors Regular check ups No unnecessary medications Appropriate, quality hospital care Help make choices about medical treatment

The Good Guardian

A good guardian helps ensure that the person is: Not cheated  Money is not stolen      Charges are fair (purchases, rental agreements) Loans are repaid Deposit is returned when moving People do not take belongings without compensation Work is paid

The Good Guardian

The good guardian supports the person to: Get and Keep Rights        Find a good lawyer, if needed Receive mail, use the phone and see family as desired Listen to the person at all meetings Have choices and help to make own decisions Get services and benefits to which the person is entitled Vote Have Privacy

The Good Guardian

The good guardian supports the person to: Make his/her own decisions        Help the person follow his/her dreams Be more independent Find people to listen to desires Find people to help take the necessary steps to support dreams and desires Believe in the person’s gifts and talents Support efforts to learn to make choices and decisions independently Make sure the person knows how to appeal if dissatisfied with the guardian

A Guardian Should

        Call and visit often Return calls Visit often if hospitalized Listen to the person’s thoughts and desires Help make decisions Treat the person with respect, as an adult Attend important meetings Respect his/her privacy

A Guardian Should NOT

     Have a conflict of interest Make decisions without consulting the person Be disrespectful Make decisions where the Court has not given power Treat the person as a child

Rights of a Person with a Guardian

   Ask court for a different guardian Ask to have guardianship order modified Appeal a decision of the guardian  Ask court to terminate guardianship (Vermont Legal Aid)

Other Duties of A Guardian (Probate Court)

     Annual Personal Status Report (Probate Court Form No. 93) Annual Financial accounting (Probate Court Form No. 89A) Notify court of change of address Obtain court approval for move to more restrictive setting Obtain court approval for certain medical decisions

For More Information

Probate Court website vermontjudiciary.org

Forms Probate Forms Guardianship Involuntary Guardianship Petition DAIL website http://dail.vermont.gov

Division of Disability and Aging Services Office of Public Guardian How to petition for guardianship Private guardianship for mentally disabled adults